Calendar Date: June 8, 2017
Michelle I. Rosien, Philmont, for appellant.
Christopher H. Gardner, County Attorney, Schenectady (Frank
S. Salamone of counsel), for Schenectady County Department of
Social Services, respondent.
M. Colatosti, Albany, for Jessica N., respondent.
J. Gaylord, Schenectady, attorney for the child.
Before: Garry, J.P., Egan Jr., Lynch, Mulvey and Aarons, JJ.
from an order of the Family Court of Schenectady County
(Burke, J.), entered November 9, 2015, which, among other
things, dismissed petitioner's application, in a
proceeding pursuant to Family Ct Act article 6, for custody
of the subject child.
(hereinafter the grandmother) is the maternal grandmother of
the subject child (born in 2010) and a resident of North
Carolina. According to the grandmother, she has long been the
child's primary caregiver - except for brief periods of
time when the child's mother, respondent Jessica N.
(hereinafter the mother), would abscond with him. At one
point, the mother's travels brought her and the child to
New York and, in May 2014, respondent Schenectady County
Department of Social Services (hereinafter DSS) effectuated
an emergency removal of the child and commenced a neglect
proceeding against the mother - alleging, among other things,
that the mother had taken pornographic pictures of the child
and sent them to a man she met online. Following the
child's removal, he was placed in the custody of DSS
pending further proceedings. Shortly thereafter, the
grandmother commenced this Family Ct Act article 6 proceeding
against DSS and the mother seeking custody of the child. The
mother subsequently was indicted on, and pleaded guilty to,
federal charges in connection with the pornographic images of
the child and was sentenced to a term of imprisonment.
response to the grandmother's custody petition, DSS
apparently asked that its North Carolina counterpart perform
a home study to determine whether, under the Interstate
Compact on the Placement of Children (see Social
Services Law § 374-a [hereinafter ICPC]), the
grandmother was a suitable resource for the child. After
completion of the home study in January 2015, the North
Carolina authorities advised DSS that it did not recommend
placement of the subject child with the grandmother and her
spouse - primarily citing the fact that the grandmother and
her husband already had custody of, and were raising, three
other grandchildren (born in 1995, 1998 and 2000).
Court thereafter conducted a fact-finding hearing relative to
the grandmother's custody petition . Although the mother
initially had opposed the grandmother's bid for custody,
the mother appeared via telephone at the start of the hearing
and voiced her support for the grandmother's petition -
prompting Family Court to dispense with an extraordinary
circumstances inquiry. At the conclusion of that hearing,
Family Court dismissed the grandmother's petition,
finding that it was not in the child's best interests to
award custody to the grandmother. This appeal by the
affirm, albeit for reasons other than those expressed by
Family Court. Although Family Court acknowledged in its
written decision that North Carolina had not recommended
placement of the child with the grandmother, the court did
not address whether, as a threshold matter, the ICPC applies
where, as here, a relative is seeking custody of the child
pursuant to a petition brought under Family Ct Act article 6
or, more to the point, whether custody of the subject child
could be awarded to the grandmother in the absence of
approval from North Carolina authorities. As we are persuaded
that the ICPC applies to this proceeding, and in light of the
statutory prohibition against placing a child in another
jurisdiction if that jurisdiction determines that such
placement would not be in the child's best interests
(see Social Services Law § 374-a  [art III]
[d]), Family Court properly dismissed the grandmother's
petition for custody.
ICPC provides, in relevant part, that
"[n]o sending agency shall send, bring, or cause to be
sent or brought into any other party state any child for
placement in foster care or as a preliminary to a possible
adoption unless the sending agency shall comply with each and
every requirement set forth in this article and with the
applicable laws of the receiving state governing the